DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.268/15
Shri Mohan Chanchlani
237-H, Green Apartments (DDA-MIG)
Rajouri Garden, New Delhi-110027. …Complainant
VERSUS
NBCC
NBCC Place, Pragati Vihar
New Delhi-110003. ….Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Date of Institution :28.09.2015
Date of Order :29.07.2022
Member: Shri U.K.Tyagi
Complainant has requested to pass an order directing the NBCC – MHG JV (hereinafter referred to as OP) to sort out the matter-related to interest so as enable to do the Registration of the flat in question; (ii) to waive the charges of Rs.2.00 per sq. Ft. for Super/saleable area per month for entire period of delay for registration.
Brief facts of the case are as under:-
The complainant booked the flat in NBCC Town – Phase I Khekra. The complainant was intimated about the allotment of flat No. J-035, Type III, 2nd Floor for the total value of the said flat excluding EDC/IDC/ and taxes for Rs. 17,47,017.00 vide the OP’s letter dated 30.04.2010. The said letter also depicts the payment schedule which was to be paid in 7 instalments. In case of delayed payment, interest shall be levied @ 15% per annum. It was clearly mentioned that the pro-rata share of EDC/Infrastructure Development Charge (IDC), as levied/leviable by the Govt. of UP will also be payable extra by the allottee.
OP, on the other hand, filed written reply inter alia raising some preliminary objections. It was stated that no final date of handing over of the apartment was ever agreed upon between the parties. As per Clause 17 of the terms & conditions of sale, the OP had merely undertaken to endeavour to complete the construction of these units within 3 years from the date of execution of agreement. It was further mentioned that the OP would offer the dwelling unit for occupation subject to receiving the certificate of occupation. It was agreed upon that delay in completion of complex could also due to Force Majeure. It is also stated that said clause is applicable to making timely payment by allottee. It is also worth mentioning that the complainant defaulted in making payments of last two instalments with delay of more than 3-4 years. The calculation of total delay and interest accrued thereon is enclosed herewith as Annexure-A. The OP issued a letter dated 22.07.2015 to the complainant requesting to take possession as per clause 17 of Agreement and he is liable to pay charges @Rs.2/- per Sq. Ft. of the Super/saleable area per month for the entire period of delay. Relevant clause is reproduced as under:-
“The complainant was only entitled to any compensation if he would have performed his part of contract by making timely payment and the complainant’s interest shall be payable @ 15% per annum for the delayed.” The complainant has referred to the case of Punit Malhotra Ors. Vs. Parasvnath Developer Ltd. decided on 29.01.2015 by Hon’ble National Commission wherein the facts of the case are entirely different and distinguishable from the present case. Here in this case, the complainant is asking for refund of deposited amount as developer i.e. Parsvnath failed to construct the flat as maintained by the OP. The OP has offered the possession of flat vide its letter dated 23.07.2015 asserting that the possession of flat was to be taken within time or else he is liable to pay compensation for delay in taking possession of the flat. Therefore, the complainant cannot claim waiver/reduction in the interest for the default committed by him.
Both the parties have filed written submissions and evidence in-affidavit. Written statement is on record so is rejoinder. Oral arguments were heard and concluded.
This Commission has gone into the material placed on record in detail. Due consideration was also given to the arguments. The whole dispute seems centre around the charging of the higher rate of interest by OP on the delayed payments made by the complainant. This Commission was also taken through the various provisions of the Agreement entered between both the parties, allotment letters and other documents. It was noticed with alacrity that the complainant shall be liable to pay interest @ 15% per annum for delayed period in making payments whereas, the OP’s liability to refund the amount deposited along with interest @ 6% in case of abandonment of the project by the OP. The complainant’s contention is that in case of delay on the part of complainant, he was to pay interest @ 15% per annum and in case OP’s failure to construct the flat/complex, the allottee shall be entitled to interest @ 6% per annum. It has been argued that there had been gross violation and the contract/agreement is voidable as same is not based on principle of equity. The Complainant had also taken the possession of the flat in question.
After considering the entire material and facts and circumstances in the case, the contract/agreement was duly signed by the parties, hence, it is necessary on the part of both the parties to respect of intrinsic provisions of said contract/ agreement. If any party defaults, the penalty mentioned thereto should be borne out accordingly. The OP also has endeavoured to distinguish the ratio of the judgment (Supra) from the facts of this case. In nutshell, this Commission is of the considered view that it is settled principle of law that the penal rate of interest has to be more than the category of other bank rate of interest. As such, the complainant is to pay the entire dues so as to enable the OP to initiate the registration process. In view of above, it is directed that OP is to complete the process of the registration of flat, if not done earlier within 3 months from the date of receipt of this order failing which a penalty of Rs.50,000/- shall be levied. The request of complainant for charging the Rs. per sq. ft. is found devoid of merit as discussed above.
File be consigned to the record room after giving copy of the order to the parties as per rules.
